Milwaukee County District Attorney John Chisholm made some jaw-dropping comments about Gov. Scott Walker recently to the news media. If he were a Republican DA saying these things about a Democratic governor (or any defendant or, in this case, potential defendant), it would be a much bigger story.

Specifically, Chisholm said – in the media – that Gov. Scott Walker could be charged criminally ... because Walker trashed Chisholm in the news media. Then he implied he could sue him.

Yes, you read that right. 

He raised the prospect of a criminal prosecution of Walker (in Iowa, it appears) for trashing Chisholm in the news media during an Iowa appearance. 

Remove Chisholm/Walker from the equation for a moment. Imagine a DA threatening to seek criminal charges against a defendant who tells the media the charges were a load of bunk. Heck, isn’t that the subject of every suppression of evidence motion filed in the Courthouse? Would you want the DA to charge the defendant for defaming him in the media or just focus on winning (or losing, perhaps) the underlying case in court?

Blaming the prosecutor (or the cops) is a common defense tactic, of course. Sometimes it works. Sometimes it doesn’t. It’s kind of the way the game works, though. People who are being investigated get to speak out in their own defense (well, unless they are gagged by a secrecy order).

On top of it, Chisholm is a political opponent of Walker, and he injected his comments into a presidential race.

You can charge people for lying to investigators or in court, but it would be rather novel (to say the least) to seek charges against a prominent political opponent for supposedly lying about you to the news media, especially after he’d been trashed for years in news stories about your investigations. 

It also strikes me that Chisholm doesn’t lack a forum to defend his honor. The allegation John Doe 2 is unconstitutional – which is at the heart of the whole matter – is exactly the legal argument being litigated right now before the state Supreme Court and in federal courts. So maybe both sides should tame down the rhetoric and let this unfold in the proper forum. Walker’s comments, in turn, were hyperbolic, failed to point out that the legal questions still are not definitively settled and were about PR as much as anything. You can disagree with his comments, though, and still be troubled by Chisholm’s comments that they can be prosecuted. 

It turns out that Iowa doesn’t even have a criminal defamation statute; Wisconsin does, but criminal libel isn’t used much to go after political speech (thank goodness); rather, think about a person who sends false and nasty posters around town alleging that someone (a candidate or neighbor, for example) is a child molester or child abuser. When they aren’t. Or something like that. That’s why the law exists.

But to be used like this? Against a political opponent in the midst of a controversial up-in-the-air investigation? C’mon.

Chisholm didn’t back down, either. Asked by the Milwaukee Journal Sentinel whether he intended to file a complaint against Walker in Iowa, he seemed to express disappointment that, unlike Wisconsin, he’d now learned that state doesn’t have a criminal defamation statute after all. He told the newspaper, "I have no further comment at this time, but have been reliably informed that only civil remedies are available in Iowa unlike Wisconsin." So is Chisholm implying he might sue Walker for trashing him in the news media? Wow.

Specifically, here’s what Chisholm said the first time, "As to defamatory remarks, I strongly suspect the Iowa criminal code, like Wisconsin’s, has provisions for intentionally making false statements intended to harm the reputation of others." 

So what did Walker say to provoke this ire? This: "I said even if you’re a liberal Democrat, you should look at (the raids) and be frightened to think that if the government can do that against people of one political persuasion, they can do it against anybody, and more often than not we need protection against the government itself. As [National Review] pointed out, there were real questions about the constitutionality of much of what they did, but it was really about people trying to intimidate people … They were looking for just about anything. As I pointed out at the time, it was largely a political witch hunt."

Ironic since Walker IS government. There was another irony here as the John Doe 2 controversy that provoked the governor’s statements has hinged on allegations that the investigation violates free speech. But this column is not about John Doe 2. At this point, I think we should all wait and see what the courts decide on that. Generic hyperbole doesn’t advance our knowledge of the law, frankly (as a matter of disclosure, dating to the 05-06 AG campaign, I know personally and like numerous people who are caught up in John Doe 2. So I’m not unbiased on that investigation. It's hard to be when you see people you know and like going through it all).

But this column isn’t about the merits of Doe 2 or lack thereof. That’s up to the judges to decide and for others to bloviate about on both sides. It’s about the unusual statement that Milwaukee County’s top prosecutor made against our sitting governor for comments he made in the news media.

Whether you oppose or support the Doe, and whether you agree with Chisholm that Walker was lying to the media or not about it, there’s something troubling as a matter of principle about a prosecutor raising the prospect of criminal prosecution for comments a political opponent made to the media. Even IF Walker was lying to the press, I think it’s wrong.

I can’t recall another time that a prosecutor has implied charges could be brought against someone for trashing him in the press. 

This comes after Walker has been tarnished in the media for years over this all by anonymous leak in some cases.

Here's why it's a problem: Chisholm is arguably chilling future criticism against himself by floating the possibility of charges or lawsuit. People might think twice before criticizing John Chisholm now; after all, he might charge them (or seek charges in Iowa anyway, if he could).  But, hey, he’s a really powerful guy who can fundamentally alter people’s lives, so some criticism goes with the territory.

Criticize Chisholm, an elected official, at your own peril now, though. Especially over this. You have to calculate what might happen to you as a result.  You have to think twice. That’s wrong.

Frankly, it’s impossible to imagine him actually doing it, anyway. Can you imagine Chisholm asking some Iowa prosecutor to bring Scott Walker up on defamation charges? What a circus that would be. So then don’t say it.

I’m sure Chisholm is getting sick and tired of being called a witch hunter and all those other things; I get that. It can’t be easy, and it must burn. Public officials are also human beings. Some of the rhetoric swirling around on this is trite and doesn’t advance our knowledge of the legal questions, which are important and complex. People forget that a special prosecutor (who is a Republican) now runs the Doe, and a judge is ultimately in charge. I also think that people conflate Does 1 and 2, skipping over the fact that Doe 1 resulted in criminal convictions for some serious charges while Doe 2 deals with entirely different questions. But being sick and tired of the rhetoric is one thing. Raising the prospect of criminal charges against a political opponent is another. 

This country’s history is replete with examples in which government tried to stifle criticism of itself by going after political opponents – even jailing newspaper editors in some cases. We have a First Amendment for a reason. The first Colonial newspaper was banned by the British government.

In the 1700s, the Sedition Act provoked prosecutions such as these:

• James Thomas Callender, Scottish citizen, sentenced to jail for criticizing the Adams administration in a book as "a continual tempest of malignant passions." 
• Matthew Lyon, Vermont Congressman, jailed for writing an essay in the Vermont Journal accusing the president of "ridiculous pomp" and "foolish adulation."
• Benjamin Franklin Bache, editor of Aurora, a partisan newspaper and Benjamin Franklin’s grandson, indicted for labeling George Washington incompetent and calling John Adams "the blind, bald, crippled, toothless, querulous Adams." He died before trial.

Let’s give Chisholm the benefit of the doubt here. Maybe he just got hot under the collar and misspoke. Prosecutors are human beings, too, and it can be heated in the bully pulpit. Then, he should retract his comment. And focus on the courtroom. If Walker’s lying as Chisholm says, and if there’s a case to be made here, or if he's not and there's not, that will come out in the end. It always does. The truth has a way of shaking itself out – in court, not through warring press statements that heat up the rhetoric but settle nothing.